6 F. 732 -

6 F1d 732

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(District (Jourt, E. D. Pun,ylfJ'f,nia. March 29, ISS1.)
1. ADMIRALTy-SALE OF BOAT-HILL OF SALE-EXECUTION OF'llT ILLITERATE MAN UNDER MISAPPREHENSION AS TO ITS CONTENTSFRAUD.

A bill of sale of a boat was executed, but not acknowledged. The vendor testified that he was an illiterate man; that the bill of sale had not been read to him, but that he had signed it supposing it to contain an agreement for a pledge of the boat, the terms of which had been previously arranged between the parties. The vendee, on the other hand, testified that the vendor had agreed to sell the boat; that the bill of sale had been drawn up in accordance with that agreement, and had been read to the vendor before SIgning. Held, as a matter of fact, (upon a review of the collateral evidence tending to corroborate or contradict these respective allegations,) that imposition had been practiced in obtaining the vendor's signature to the bill of sale.

In Admiralty. Libel for Possession. The evidence disclosed the following facts: In February, 1878, Patrick Hogan, the libellant, who was then the owner of the barge in controversy, chartered her, to be manned by himself, to one William Holeman. While employed under this charter the boat was, during a temporary absence of Hogan, and while manned by a person appointed by Holeman, sunk at the wharf. She was raised and repaired at a cost of about $400. Hogan being unable to pay for the repairs they were paid for by Holeman, and at the same time Hogan executed to him a bill of sale of the boat, the consideration named therein being the sum of $500. This bill OP sale was duly witnessed but not acknowledged. After its execution the barge continued to be used in the service of Holeman and manned by Hogan, who, however, received but $10 per week. In September, 1880, a dispute arose between the parties, Hogan claiming the ownership of the boat and refusing to quit her. Upon Holeman's complaint Hogan was thereupon arrested for stealing the boat, but was discharged on habeas corpus. During Hogan's imprisonment Holeman
4!'Reported by Frank P. Prichard, Esq., of the Philadelphia bar.

BARGE NO.6.

733

had taken possession of the boat, and upon Hogan's release the latter filed the present libel. Libellant alleged that at the time of the sinking of the boat there had been some controversy as to who should pay for the repairs, which had been settled by an agreement that Holeman should pay them, but should re-imburse himself by retaining from the sum agreed to be paid to Hogan for her use $15 per week, until the amount of the bill was repaid, and should in the meanwhile hold the title to the boat as collateral security; that libellant was an illiterate man; that the bill of sale had not been read to him, but that he supposed it contained the agreement previously made; and that the amount of the repairs had now been fully repaid to Holeman by the retention of the weekly sums stipulated for. Respondent, on the other hand, alleged that Hogan, being to pay for the repairs, and fearing a forced sale of the boat, requested a loan of the money from Holeman, and, on this being refused, agreed to sell the boat to Holeman for $500-out of which $400 was to be paid for the repairs and $100 to Hogan; that the bill of sale was thereupon executed by Hogan, after having been read to him, and that the $100 was subsequently paid; that Holeman continued to employ Hogan ata salary of $10 per week until September, 1880, when he was discharged. The subscribing witnesses were called, but testified that the paper was not read in their presence, nor did they know its contents. There was no direct testimony as to the agreement of the parties, on the execution of the bill of sale, other than· that of the parties themselves, but various collateral evidence was offered for the purpose of contradicting or corroborating the respective allegations. A. C. Selden and Curtis Tilton, for libellant. Walter G. Smith and Francis Rawle, for respondent. BUTLER, D. J. Respondent exhibits a bill of sale from libellant, and claims title to the boat under it. Libellant says his signature to the paper was obtained through fraud; that he is illiterate, unable to read writing, and the paper was not read to him; that he and respondent had a contract

734

REPORTER.

for hiring, (of himself and the boat,) and he understood the paper as relating to this. The allegation of fraud must be 'Proved. The libellant is pretlumed, (in the absence of evidence to the contrary,) to have known the contents of the paper, when signing. The burden of proof is, therefore, on him. Some weeks preceding the date of the paper, the respondent had contracted with for his services, and the use of his boat. The libellant entered upon the service, and a few days after, (he being detained at home by the condition of his family,) respondent took possession of the boat, and by improper loading, sunk and damaged it. Repairs being thus rendered necessary, the boat was taken to Mr. Tilton's yard, and a bill for $400 contracted. What proportion of this was for repairs rendered necessary by the accident, and what byreason of the boat's previous condition, is not clear; but I have no smaller part is referable to the former cause. doubt much The boat appears to have been in fair condition for the use being made of it before the accident, but after this occurrence libellant resolved to strengthen and improve it. Thus far the statements of the parties do not materially differ,-(saving as relates to the extent of the injury sustained by sinking.) Here, however, they separate. The libellant, says the respondent, in consideration of having injured the boat, became surety for the repairs resolved upon, and contracted for the service of himself and the boat, at $25 per week, $15 of which were to ,be retained weekly, until the bill for repairs should be paid; that when he signed the bill of sale, and the other paper accompanying it, he understood them to ex.press this agreement, neither being read to him, and that he knew no better until respondent ex.hibited and read them in answer to his demand for settlement, when a claim to the boat was first set up; that on completion of the repairs he continued in respondent's employment, as before he had been, for a period of over six months, and then, believing respondent had been paid by the weekly retention of $15, under the con. tract, he demanded a settlement; whereupon the respondent

· BARGE NO.6

became angry, claimed possesSion of the boat, ordered him ,away, 8ID.d directly after, under pretence 'that he had stolen the boat, (which wastak'en. with him,) had him arrested,and todkthe boat... The respondent, on the other hand, denies becomingsecnrity for the repairs, or hiring the libellant and boat,> after the accident; saying that when the repairs were about being completed, the libellant, fearing his boat would be sold on aocount of them, solioited him to purchase it, and that after some hesitation he did so, for$500,-paying -Mr. Tilton $400, less a disoount of $25', for cash,-and $100 to libellant's wife, at his request, and took the bill of sale; and aocompanying paper, (which he read to the libellant before signing,) as evidence of the transaction. Whiohof these oonflioting statements is true? Thatot the libellant is corroborated, and the other contradioted, byMt. Tilton, to the extent· that he heard the parties talking when at his plaoe, about $24 or $25 per week for the use ·of the vessel,and says respondent was surety for the repairs. It is also corroborated by the respondent's failure to produce receipts or book-entries,: for payment of anything on aocount of the alleged purchase, to the libellant or his wife; and the testimony of the wife that no suoh payment was made to her, as respondent states. The subsoribing witnesses to the bill of sale and aocompanying paper, say neither was read in their presence; that they did not know the contents of either, and did not heara,sllile spoken ()f at the time, nor at any time. Neither Mr. Tilton, who repaired the boat, and saw a good deal of respondent in connection with it, nor any other witness called, ever heard either of the parties refer to a sale or transfer of the boat,-so far as appears. On completion of .the repairs libellant resumed possession of the boat and employed it l preoisely as he had done before, furnishing all necessary supplies, (except chains, anchors, etc., procured at the time of repairing,) and any third person would certainly have believed, from appearances, that be continued to be the owner, and have been justified in dealing with him as such. On the other hand the respondent is not corroborated in any

736

FEDERAL REPORTER.

respect, (if we omit the bill of sale and accompanying paper,) and while his conduct may possibly have been honest and fair, appearances are against him. The circumstances under which he claims to have purchased the boat are calculated to exoite suspicion. The situation of the libellant, an illiterate man, in necessitous circumstances, in the respondent's employment; seriously embarrassed by the injury to his boat; the inadequacy of the alleged consideration; the resort to unfairness, in arresting the libellant on a charge of larceny, to obtain possession, are circumstances which cannot be over10Pked in considering the claim which the respondent sets up. His acknowledged offer of $50 to "get rid" of the libellant and obtain possession of the boat, just before making the charge of larceny, is not consistent with his claim; and his statement that if the repairs had been found to cost $500, he would have paid libellant $100, notwithstanding the contract did not require it, does not tend to inspire confidence in his candor. In short, while the libellant's statement seems consistent and probable, in itself, and is corroborated in important particulars, that of the respondent seems inconsistent and improbable, and is wholly without corroboration,-aside from the papers referred to. I find, therefore, as matter of fact, that imposition was practiced in obtaining the libellant's signature to the bill of sale and accompanying paper, and that the contract between the parties was simply for the servioes of the libellant and his boat, on the terms he has stated. If the contract amounted to a pledge of the boat for the sum advanced, (and it probably did,) the evidence, I think, justifies a belief that respondent has been paid by the money retained. A decree will, for these reasons, be entered in favor of the libellant.

FIRST NAT. BANK OF YOUNGSTOWN 11. HUGHES.

737

FIRST' NATIONAL BANK: ott YOUNGStOWN

'I).

HUGHltS

and

another.

(OWouU N. D. OMo. - , 188L)

oJ. DEpOsrrs-DISOLOSUU oJ'DEPoe-

NATIONAL BAltKS--'TAXATION ITOBS.

A national bank may be compelled to disclose the names of ita depositors, and the' amounts of their depoSita under 'the sory process of a state court in order to ascertain whether $n1 money deposited therein, totaxatlon within the county, has not been duly returned for that purpOse by owners. A federal cOurt cannot, in such case, stay the proceedings in the state court by writ of· injunction.-[Ed.

2. SAllE-INJUNCTION.

In Equity. Demurrer and Motion to Dissolve Injunction. Sidtney Strong,. A. W. lones, and T. W. Sanderson, of Youngstown, Ohio, for complainant. M d-nroe W. lohnson, of Youngstown, and W. C. McFarland, of Cleveland, for defendants. BAXTER, C. J. The complainant is a national bank, organized under the act of congress, and has its place of business in Youngstown, Mahoning county, Ohio. It complains of James B. Hughes, auditor, and Monroe W. Johnson, prose': cuting attorney, of said county, and charges that previous to and on the second Monday of April, 1880, it was, and has ever since been, engaged in the business of banking, ized b;y law, and that it then had and has continued to have not less thail $4.00,000 of deposits, which it employed in its busi. ness, and from which it derived profit. Protesting that "it is not subject to any visitorial powers other than such as are authorized by said act of congress or vested in the courts of the: country," it proceeds to complain "that the said James B.. Hughes, a.lditor of Mahoning county, pretending to act by authority of section 2782, Revised Statutes of Ohio, did, on or about the twenty-second day of June, 1880, issue and cause to be served upon William H. Baldwin, the cashier of your orator, a written order commanding the said Baldwin, as such cashier, to appear befGre sald auditor on the twentyv.6,no.8--'47